The new Copyright Act adds a new section 30.02 that virtually equates digital reproduction of works to photocopying (i.e. reprographic reproduction) for educational institutions.

The general idea is that if an educational institution has a license to make photocopies of works, then the institution may also make digital reproductions of these works and communicate such reproductions by telecommunication for an educational or training purpose.

The person who received such digital reproduction of a work is allowed to print one copy of it.

The educational institution is required to pay to the collective society the same license fees as in the case of the conventional photocopying license and to take steps to prevent unauthorized dissemination of the digital reproduction of the work.

Copyright owners whose rights are represented by a collective society that is authorized to grant licenses to photocopy these authors’ works may refuse to authorize the collective society to enter into digital reproduction agreements with respect to their works, but the default rule is that such permission is deemed to be granted.

Based on the provisions of paragraphs 30.02(4)(a) and 30.02(4)(b), it appears that this section will be of lesser importance once separate tariffs for digital reproduction have been certified.

This section also severely limits the remedies for unauthorized use of the works.

Because copyright owners at least have an opportunity to opt out from the application of this section, I would be happy with it if not for two issues:

First, I do not understand the reasoning behind curtailing the remedies of copyright owners in case their rights are infringed beyond what the exception has already taken away from them; and

Second, I would prefer some clarification as to how this new section is supposed to coexist with the addition of the word “education” to section 29 of the Act.

Speaking of the latter, I am getting many calls and emails with questions about whether this or that use can be justified under the “education” exception. Some are very creative in trying to justify what appears to be blatant copyright infringement under the pretense of having educational purposes.

If specific sections of the Copyright Act are meant to limit the application of s. 29 in that educational purposes are limited to those specific instances that are listed elsewhere in the Act, then the problem is of a much smaller caliber (albeit I still disapprove of the expansion of so-called “user rights”). If, on the other hand, s. 29 is to stand on its own in addition to all these specific instances then we are about to open the Pandora’s box.

BOTTOM LINE: Time will tell.

PS. The new Section 30.03 deals with tariffs. In a language whose clarity is only superior to that of the Income Tax Act, an attempt is made to specify what happens if a new tariff is introduced for digital reproduction or if the educational institution enters into an agreement that specifically deals with digital reproduction. The new section 30.03 is supposed to make it clear what happens with the license fees that the educational institution was paying under s. 30.02. The new section 30.03 may contain an answer to this question, but make it clear it does not...

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